ERNEST DAVIS, JR., 

Petitioner, 

v. 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

CASE NO. 2:12-CV-0098 

JUDGE MICHAEL H. WATSON 

Magistrate Judge Kemp 

WARDEN, ROSS 

CORRECTIONAL INSTITUTION, 

Respondent. 

OPINION AND ORDER 

This matter is before the Court on Petitioner Ernest Davis, Jr.'s objections to a 

Report and Recommendation issued by the Magistrate Judge on September 4, 2012. 

The Court, having reviewed the record de novo, finds for the reasons set out below that 

the objections to the Report and Recommendation are without merit. For the following 

reasons, petitioner's objections will be OVERRULED and the Report and 

Recommendation will be ADOPTED in its entirety. This habeas corpus action will be 

DISMISSED. 

I. STANDARD OF REVIEW 

When objections are received to a Magistrate Judge's Report and 

Recommendation on a dispositive matter, the assigned District Judge "shall make a de 

novo determination ... of any portion of the magistrate judge's disposition to which 

specific written objection has been made .... " Fed. R. Civ. P. 72(b). After review, the 

District Judge "may accept, reject, or modify the recommended decision, receive further 

evidence, or recommit the matter to the magistrate judge with instructions." /d.; see 

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a/so 28 U.S.C. §636(b)(1 )(8). General objections are insufficient to preserve any 

issues for review; "[a] general objection to the entirety of the magistrate's report has the 

same effects as would a failure to object." Howard v. Secretary of Health and Human 

Services, 932 F.2d 505, 509 (6th Cir. 1991). 

II. THE REPORT AND RECOMMENDATION 

As more fully set out in the Report and Recommendation, petitioner was 

convicted by a Franklin County, Ohio jury of nine counts of criminal behavior arising out 

of a robbery and kidnapping episode and was sentenced to a total of 37 years of 

imprisonment. His claims here are related to that conviction. All of them raise the issue 

of whether he received the effective assistance of counsel at trial. 

In the Report and Recommendation, the Magistrate Judge recommended that 

petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be 

denied because none of petitioner's claims had merit. More specifically, the Report and 

Recommendation concluded that the state courts did not unreasonably determine that 

petitioner' counsel was not ineffective for: (1) failing to call alibi witnesses, (2) failing to 

introduce evidence showing that on the day before the incident in question, petitioner 

was himself robbed by two of the next day's victims, (3) failing to impeach two 

prosecution witnesses with evidence of their criminal records, and (4) failing to call 

petitioner as a witness. The state court of appeals held that each of these claims 

similarly lacked merit either because the record did not contain enough evidence to 

show that petitioner was somehow prejudiced by counsel's alleged omissions, or that 

the record affirmatively demonstrated that- at least in the instance of counsel's failure 

to call petitioner to testify- petitioner himself made that decision. 

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The question before this Court is whether, under the Anti-Terrorism and Effective 

Death Penalty Act ("AEDPA"), the state court's decision represents either an 

unreasonable application of, or is contrary to, well-settled principles of federal 

constitutional law. See, e.g., Harrington v. Richter, 131 S.Ct. 770, 786-87 (2011 ); 28 

U.S.C. § 2254(d). The Court notes that petitioner objects to the Court's use of this 

standard of review, citing to Justice Stevens' opinion in Williams v. Taylor, 529 U.S. 

362, 387 (2000), for the proposition that this standard represents an unconstitutional 

suspension of the writ of habeas corpus. It is important to note that in that section of 

his opinion, Justice Stevens was not writing for the Court, but was dissenting from its 

holding, contained in Justice O'Connor's opinion for the majority of the Court, that under 

the AEDPA a federal court may grant a writ of habeas corpus to a state prisoner only if 

"the state court arrives at a conclusion opposite to that reached by this Court on a 

question of law, ... if the state court decides a case differently than this Court has on a 

set of materially indistinguishable facts," or if "the state court identifies the correct 

governing legal principle from this Court's decisions but unreasonably applies that 

principle to the facts of the prisoner's case." Williams, 529 U.S. at 413. That is the law 

this Court is bound to follow unless and until the Supreme Court changes its 

interpretation of the AEDPA or Congress changes the law. 

Ill. THE OBJECTIONS 

Petitioner does not object to the Report and Recommendation's summary of 

either the facts or the procedural history of the case, so the Court adopts by reference 

that portion of the Report and Recommendation (ECF No. 13, at 1-5). He also does not 

(and could not) argue that the Report and Recommendation, and the state court of 

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appeals, erred in applying the standard set forth in Strickland v. Washington, 466 U.S. 

668, 687 (1984) to his claims of ineffective assistance of trial counsel. Under 

Strickland, the Sixth Amendment's guarantee of effective assistance of counsel is 

violated only if counsel made serious errors in representing the defendant - errors 

even a minimally competent attorney would not make- and those errors prejudiced 

the defendant by preventing him from obtaining a fair trial. That latter conclusion can 

be reached only if, had it not been for counsel's errors, the result of the case would 

likely have been different. See Strickland, 466 U.S. at 694. Petitioner's specific 

objections to each section of the Report and Recommendation are discussed below. 

A. Alibi Witnesses 

In his state court appeal, petitioner claimed that counsel never contacted or 

called a number of alibi witnesses who would have testified, according to petitioner, that 

they saw him at a Kroger store on the day of the kidnapping and robbery. The record 

before the state court on direct appeal provided no additional information about when in 

the day those witnesses would have placed him at the store or how close it was to the 

scene of the robbery; the state court held that the claim was too thinly supported to be 

credited. 

In his objection, petitioner continues to argue that this conclusion was wrong, 

noting that it is implicit in the concept of an "alibi witness" that the witness would be able 

to place the defendant elsewhere during the commission of the crime. He relies on the 

decision in Clinkscale v. Carter, 375 F.3d 430 (6th Cir. 2004) in support of that claim. 

That case, however, turned in part upon the failure timely to file a notice of an alibi 

witness, something required by Ohio law, which precluded counsel from calling any alibi 

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witnesses. Additionally, in Clinkscale there was evidence in the state court record 

about what those witnesses would have said, including an affidavit from one of them 

and an investigative report in which a defense investigator concluded that the 

"defendant ... had an alibi that could be corroborated by these three witnesses and 

possibly others, and the investigative report details the substance of that corroboration." 

/d. at 444. Nothing like that exists in this case. 

The Court agrees with the state court that a defendant may not simply claim to 

have an alibi and identify people who might say so in order to sustain a claim of 

ineffective assistance of counsel; the defendant must also show, at least to some 

extent, what those witnesses would have said had they been called to testify. There is 

simply no other way to determine if their testimony might reasonably have produced a 

different result at trial. This Court has held that in such circumstances, the defendant 

must make "a showing that the witness or witnesses ... did, in fact, have favorable 

testimony to offer." Sowell v. Collins, 557 F.Supp.2d 843, 883 (S.D. Ohio 2008), aff'd 

663 F.3d 783 (6th Cir. 2011). The state court's insistence on such evidence was not 

an unreasonable application of federal law, and there is no merit to petitioner's first 

objection. 

B. The Other Robbery 

At trial, petitioner wanted his counsel to introduce evidence that two of the 

alleged victims, Michael Williams and Steve Mix, robbed him on the day prior to the 

robbery which petitioner allegedly committed. Presumably, this evidence would have 

been used to accuse those two witnesses of fabricating the next day's events. The 

state court concluded that the record did not support petitioner's claim that there 

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actually was evidence of such a robbery, and, in any event, petitioner was not 

prejudiced by its omission. 

In his objections, petitioner takes issue with the proposition, advanced by the 

state court and accepted in the Report and Recommendation, that this evidence would 

not likely have changed the outcome of his trial. This Court cannot agree. 

The record shows that petitioner and two other men were accused of kidnapping 

seven adults and three small children on Thanksgiving Day in 2008, tying them up, 

forcing them into a van, and riding around Columbus for several hours while demanding 

money. Michael Williams and Steve Mix were two of the adults. There was 

uncontradicted physical evidence linking some of the victims to the van, which belonged 

to petitioner, and which was discovered only hours after the crime was reported. 

Another of the adults recognized petitioner, whom she knew, and who did not wear a 

mask during the incident. All seven testified at trial. 

Petitioner claims that it is possible that the two prior day's robbers, Mix and 

Williams, put the entire group of adults, who were all related in some way, up to 

concocting a story in order to destroy petitioner's credibility if he reported the robbery. 

Even if a jury might have credited such a theory, it does not explain the evidence in the 

van, nor does it alter the fact that the jury might also have concluded that petitioner 

committed the crime in retaliation for having been robbed the day before. The state 

court's conclusion that the admission of evidence about that robbery, even if that 

evidence showed conclusively that Mix and Williams committed it, would not likely have 

changed the outcome of the trial is, again, not unreasonable, and it precludes relief on 

this claim. 

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C. Counsel's Failure to Impeach Witnesses Williams and Mix 

Petitioner's third claim was that his attorney did not impeach these two witnesses 

by introducing details of their prior criminal record. However, the prosecutor brought 

that record out on direct examination, and the state court held that any further attempt 

to introduce details of that record on cross would have been both cumulative and 

irrelevant. 

In his objections, petitioner does not take issue with this holding, other than to 

argue that the evidence about the prior day's robbery would not have been cumulative 

since the prosecutor did not ask about that event. However, because neither Mix nor 

Williams had been convicted of that alleged crime, evidence of it would not have been 

admissible under the Ohio rules governing impeachment of witnesses through proof of 

a conviction of a felony or a crime of falsehood. See Ohio R. Evid. 609(A), which 

requires proof that the witness "has been convicted of a crime .... " Thus, this 

argument is really no different than the prior argument, and it similarly lacks merit. 

D. Failure to Call Petitioner as a Witness 

Petitioner's final argument is that counsel should have called him to testify. As 

the Report and Recommendation reflects, the trial judge questioned petitioner on the 

record about his decision not to testify, and he confirmed both that he did not want to 

and that he had made that decision himself. In his objections, petitioner argues that his 

decision was influenced by bad advice from counsel. He does not specify what counsel 

told him, however, in order to persuade him not to take the stand. 

The Report and Recommendation observed that 

the record does not contain any evidence of exactly what he discussed with 

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counsel, any advice counsel may have given him, or why, in the context of 

petitioner's prior convictions for burglary and other felony offenses, any such 

advice was flawed. Given the fact that he waived the right to testify on the 

record, and further given the fact that if he did rely on advice of counsel in 

doing so, there is no evidence about why counsel may have been ineffective 

in advising him on this subject, this claim is completely unsupported and 

without merit. The state court of appeals did not act unreasonably when it 

reached that conclusion. Cf. United States v. Walker, 2000 WL 378532, *7 

(E.D. Pa. April 4, 2000) ("electing not to testify in light of impending 

impeachment via introduction of evidence of past criminal activity is wise trial 

strategy and certainly on its face, well within the range of reasonable 

conduct, within prevailing professional norms for defense counsel"). 

Report and Recommendation, ECF No. 13, at 15-16. This Court agrees. There is no 

merit to this claim. 

IV. DISPOSITION 

For the foregoing reasons, petitioner's objections are OVERRULED. The 

Magistrate Judge's Report and Recommendation (ECF No. 13) is ADOPTED and 

AFFIRMED. This action is hereby DISMISSED. 

IT IS SO ORDERED. 

M~ ~~~.til~ "'A ~ON, JUDGE 

UNITED STATES DISTRICT COURT 

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